(Councillor Hanvey did not participate in the vote on this item as he had not been present for the duration of the officer’s presentation when it had been presented previously, on 19th January, 2021.)
The Principal Planning officer provided the Committee with an overview of the application, which had previously been presented at the meeting on 19th January.
She explained that the item had been deferred for a second time at that meeting, on the basis that Members had requested legal advice in relation to the planning position of the site in respect of its current status, regarding the demolition of the previous dwelling on site and whether that constituted willful abandonment, a nil use or neither.
The Principal Planning officer outlined that the Case officer remained of the view that the demolition of the original dwelling had resulted in a nil use of the land, when considered in light of previous relevant case law. She explained that DCS No 400-002-136 considered the lawful use of a site following demolition. In that case, the inspector had declined to confirm that the construction of three replacement dwellings in Leicestershire would be lawful following demolition of the original dwellings and that it created a nil use on the site. The case was clear that demolition had resulted in nil use.
The Committee was advised that it was confirmed that the previous dwelling was demolished in 2013.
The agent had stated that the established residential use for the previous 115 years had not been taken into account. The Principal Planning officer advised that it remained that no planning permission had been granted on the site for the replacement of the dwelling and the length of time the previous dwelling stood was not a relevant factor. Once the previous dwelling was demolished the site contained a nil use.
The agent made reference to case law, in regards to establishing whether an existing use had been abandoned in circumstances where the residential building was still on the land, in various states of dilapidation, or where the use of the land for certain commercial uses had discontinued for a number of years. The Principal Planning officer explained that none of the cases addressed the lawful use of a residential site following the demolition of the dwelling. The case of Iddenden and Others V. Secretary of State for the Environment and Another  1 WLR 1433 did, however, deal with circumstances such as these, i.e., where there had been demolition of the residence, albeit it was in the context of enforcement. In that case, the Court were of the view that the established use was lost once the demolition had occurred.
She outlined that the Planning Service was unaware of any PAC decisions in respect of the issue and the applicant’s agent had not provided any. Officers were however aware that the approach had been used by some English planning appeal decisions. She added that officers remained of the view that the application site currently had a nil use and, as such, there was no lawful existing access. The Members were also advised that the proposed access to Ashley Park was sub-standard and would prejudice road safety.
The Committee was reminded that DFI Roads had been consulted and objected to the proposal as it was considered contrary to policy AMP 2 of PPS 3, in that the proposed access would prejudice road safety. The visibility splays were deemed to be inadequate.
The Chairperson advised the Committee that the agent, Mr. T. Gourley, had spoken at the last meeting at which the application had been considered, on 19th January. However, Mr. Gourley had requested to address the Committee again to discuss the legal arguments as he believed they had been misconstrued. The Committee acceded to his request and he was welcomed to address the Committee.
Mr Gourley stated that, as a former Planning officer, he was disappointed in the Case officer’s report. He stated that:
· he had concerns regarding the robustness of the legal opinion;
· the Case officer’s report relied upon one single appeal of a certificate of lawful use, relating to the commencement of a permission in a rural area and that it was not comparable with the application in question;
· paragraph 4 of that appeal decision, which had been relied on by the planning office, stated that a dormant use could still be an extant lawful use;
· paragraph 5 of the same decision clearly stated that no abandonment was being argued by the Council in that particular case - it accepted that repeated applications maintained the use, which applied in the current application;
· the focus of the appeal concerned the formation of a new unit by merging 3 sites into one site for a dwelling, thereby creating a new “chapter or use”, and that the case was completely different from the proposal for 11 Ashley Park;
· the Iddenden case determined that even though a building on a cement depot was demolished, but that no nil use arose and that the use of the site remained, albeit in a different way of operating. He stated, therefore, that the use of the access at 11 Ashley Park was still in existence and still be in entitlement to use;
· the photographs did not clearly demonstrate the dropped kerbs and did not accurately depict the visibility; and
· his letter of support detailed 3 court decisions and that the Case officer’s report did not detail any.
In response to a Member’s question, the Mr. Gourley advised the Committee that there was an existing entrance at the site which had been used for many decades. The dwelling had fallen into disrepair, having been vandalised and burned, and that, on account of it being a dangerous structure, Lisburn City Council had directed the owner to demolish the property as a result of force majeure. He stated that, had it not been for the anti-social behaviour, the application would be for the replacement of a structure, not a new access, and that the existing access would have been acceptable.
The Planning Manager (Development Management) advised the Committee that the issue at hand was one of highway safety. Visibility in a westerly direction was highly deficient as advised by the Department for Infrastructure. This matter required particular attention because of the potential implications of a road access which could result in injury, serious injury or even a fatality. The applicant would be able to exercise their right of appeal if the application was refused.
The Committee resolved to refuse the application in accordance with the officer recommendation and delegated power to the Director of Planning and Building Control for the final wording of the refusal reasons.